La posición jurídica de la Administración y del obligado tributario ante el descubrimiento de hechos fiscales con relevancia penal

Abstract

Despite attempts to establish an appropriate regulatory framework for fighting tax fraud, there is still significant legal uncertainty concerning some fundamental aspects of the current procedure, which affect both the Tax Administration as well as taxpayers. When the Spanish Tax Administration unearths facts that hint at the presence of fraud while conducting tax inspections, it must continue, without having criminal investi-gation powers, with the tax procedure to provisionally collect the defrauded amount and prepare a report that substantiates the potential criminal nature of the facts, which will subsequently be passed on either to the judge or to the Public Prosecutor's Office. The transition between the inspection procedure and criminal proceedings is commonly re-ferred to as the pre-procedural investigation.During this phase, the aim of the tax administration’s investigation is no longer to verify whether the amount of tax due was reported correctly and in conformance with tax legislation, but rather to obtain sufficient evidence to support the report of a tax crime. However, according to the current legislation, the status of the taxpayers concerned re-mains unchanged during this pre-procedural investigation, which means that they still have the legal duty to cooperate with the Tax Administration. That is to say, they are compelled, on pain of a penalty, to give all the information required, without enjoying any of the procedural guarantees that stem from the right to a fair trial (such as the right to remain silent and not to incriminate oneself)...